In a true emergency, such as smoke, water or gas pouring out of your apartment, or other conditions that threaten life and safety, your landlord and his agents have the right to enter your apartment without advance notice. They also have the right to enter to make necessaary repairs at reasonable hours with reasonable notice and with proper identification. If they enter your unit without your permission in non-emergency cases, they are trespassing, a criminal offense.

There is no NY state statute that defines a landlord's right to entry, however, both Rent Control and Rent Stabilization laws contain limited entry provisions; other rent regulations, such as Mitchell-Lama or NYCHA, may contain similar provisions. There are also a NYC law and rule that limit it; there may be similar laws in other towns or counties. Most leases and rental agreements give landlords some rights to enter rental properties under broader circumstances than these laws. As with any other confilct between the lease clause and the laws in L&T issues, if the lease is more favaroble to the tenant than the law is, the landlord must abide by the lease; if the lease is less favaroble, the laws control. Furthermore, if the lease gives the landlord unfetterred right to enter without reason or notice, this would be unenforceable because it would violate the tenants right to possession and privacy.

Landlords may have grounds for eviction proceedings for breach of lease or for violation of substantial obligations of the lease and/or tenancy (laws) against tenants who unreasonably deny aiccess requests. Landlords must generally require a notice to cure to provide access before serving a termination notice followed by the petition. In the event landlord prevails at trial RPAPL § 753(4) provides "In the event that such proceeding is based upon a claim that the tenant or lessee has breached a provision of the lease, the court shall grant a ten day stay of issuance of the warrant, during which time the respondent may correct such breach."

No tenant shall refuse to permit the owner, or his or her agent or employee, to enter such tenant's dwelling unit or other space under his or her control to make repairs or improvements required by this code or other law or to inspect such apartment or other space to determine compliance with this code or any other provision of law, if the right of entry is exercised at a reasonable time and in a reasonable manner. The department may by regulation restrict the time and manner of such inspections.

RULES & REGULATIONS OF THE CITY OF NEW YORKTITLE 28. HOUSING PRESERVATION AND DEVELOPMENTCHAPTER 25. MULTIPLE DWELLINGS.SUBCHAPTER H. OWNER’S RIGHT TO ACCESS TO APARTMENTS OR ROOMS IN MULTIPLE DWELLINGS.

28 RCNY § 25-101. Owner’s Right of Access.

(a) Owner to give notice. Where an owner seeks access to an apartment, suite of rooms or to a room, under the provisions of § 27-2008 in order to make inspection therein for the purpose of determining whether such places are in compliance with the provisions of the multiple dwelling law of the administrative code, he shall notify the tenants that he will seek access to the apartment, suite of rooms, or rooms, not less than twenty-four hours in advance of such time. Where an owner, contractor or agent of the owner seeks access to make improvements required by law or to make repairs, notice shall be given to the tenant not less than one week in advance of the time when the improvements or repairs are to be started. However, where repairs are urgently needed in emergencies to prevent damage to property or to prevent injury to persons, such repairs of leaking gas piping or appliances, leaking water piping, stopped-up or defective drains or leaking roofs, broken and dangerous ceiling conditions, no advance notice shall be required from the owner, agent, contractor or workman.

(b) Notices to be in writing. Where an owner is required to give notice in advance of seeking access to an apartment, suite of rooms or to a room, as required by subdivision (a) of this section, such notice shall be in writing and shall contain a statement of the nature of the improvement or repairs to be made.

(c) Authorization to be in writing. Where an authorized agent or employee of an owner seeks access to an apartment, suite of rooms, or rooms, the authorization of the owner shall be in writing and the agent or employee shall exhibit such authorization to the tenant when access is requested.

(d) Hours when access to be permitted. Except in emergencies, access to an apartment, suite of rooms, or rooms, shall be limited, to the hours between nine antemeridian and five post-meridian. Access shall not be required on Saturdays, Sundays or legal holidays except in emergencies.

Note: Neither the HMC as a whole nor section 27-2008 by its own terms, is restricted to multiple dwellings (buildings with three or more units), so it is unclear why the NYC rule enacted to enforce it is titled as it is.

NYC Rent Stabilization Code

Subchapter B of Chapter VIII of Subtitle S of Title 9 NYCRR

§ 2524.3 Proceedings for eviction--wrongful acts of tenant

Without the approval of the DHCR, an action or proceeding to recover possession of any housing accommodation may only be commenced after service of the notice required by section 2524.2 of this Part, upon one or more of the following grounds, wherein wrongful acts of the tenant are established as follows:

(e) The tenant has unreasonably refused the owner access to the housing accommodation for the purpose of making necessary repairs or improvements required by law or authorized by the DHCR, or for the purpose of inspection or showing the housing accommodation to a prospective purchaser, mortgagee or prospective mortgagee, or other person having a legitimate interest therein; provided, however, that in the latter event such refusal shall not be a ground for removal or eviction unless the tenant shall have been given at least five days' notice of the inspection or showing, to be arranged at the mutual convenience of the tenant and owner so as to enable the tenant to be present at the inspection or showing, and that such inspection or showing of the housing accommodation is not contrary to the provisions of the tenant's lease or rental agreement.

a. No tenant, so long as he or she continues to pay the rent to
which the landlord is entitled, shall be removed from any
housing accommodation which is subject to rent control under
this chapter by action to evict or to recover possession, by
exclusion from possession, or otherwise, nor shall any
person attempt such removal or exclusion from possession
notwithstanding the fact that the tenant has no lease or
that his or her lease, or other rental agreement, has
expired or otherwise terminated, notwithstanding any
contract, lease agreement, or obligation heretofore or
hereafter entered into which provides for surrender of
possession, or which otherwise provides contrary hereto,
except on one or more of the following grounds, or unless
the landlord has obtained a certificate of eviction pursuant
to subdivision b of this section:

(6) The tenant has unreasonably refused the landlord access
to the housing accommodation for the purpose of making
necessary repair or improvements required by law or for
the purpose of inspection or of showing the
accommodation to a prospective purchaser, mortgagee or
prospective mortgagee, or other person having a
legitimate interest therein; provided, however, that in
the latter event such refusal shall not be ground for
removal or eviction if such inspection or showing of
the accommodation is contrary to the provisions of the
tenant's lease or other rental agreement.

cite as : NYCAC § 26-408(a)(6)

NYC Rent Control Regulation

OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OFTHE STATE OF NEW YORKTITLE 9. EXECUTIVE DEPARTMENTSUBTITLE S. DIVISION OF HOUSING AND COMMUNITY RENEWALCHAPTER VII. EMERGENCY HOUSING RENT CONTROLSUBCHAPTER D. RENT AND EVICTION REGULATIONS ‐‐ NEW YORK CITY

§ 2204.2 Proceedings for eviction without certificate.

(a) Except as provided in sections 2204.1 and 2204.4 of this Part, an action or
proceeding to recover possession of any housing accommodation shall be
maintainable, after service and filing of the notice by section 2204.3, only upon one
or more of the following grounds:

(6) The tenant has unreasonably refused the landlord access to the housing
accommodation for the purpose of making necessary repairs or improvements
required by law or for the purpose of inspection or of showing the
accommodation to a prospective purchaser, mortgagee or prospective
mortgagee, or other person having a legitimate interest therein; provided,
however, that in the latter event such refusal shall not be grounds for removal
or eviction if such inspection or showing of the accommodation is contrary to
the provisions of the tenant’s lease or other rental agreement.

If a tenant unreasonably denies access to her landlord's reasonable request for access as required by various laws and/or by her lease, the landlord can, commence an eviction proceeding if those laws and/or the lease authorize this course of action.

There are very few published decisions on this issue; some examples:

In this first decision, the Appellate Term ruled that the lower court should not have dismissed the case on a motion, but should have held a hearing or trial instead.

Not Reported in N.Y.S.2d, 2002 WL 538463 (N.Y.Sup.), 2002 N.Y. Slip Op. 50113(U)This opinion is uncorrected and will not be published in the printed Official Reports.

Landlord appeals from an order of the Civil Court, New York County, dated August 20, 2001 (Paul L. Alpert, J.) granting tenant's motion for summary judgment dismissing the petition in a summary holdover proceeding.

This holdover proceeding cannot be disposed of on summary judgment, since unresolved factual issues are raised as to whether the stabilized tenant "unreasonably refused" the landlord access to the subject apartment to allow landlord to effectuate the repair work authorized by DHCR in its October 19, 1998 order (see, Rent Stabilization Code [9 NYCRR] § 2524.3[e]). The cited Code provision authorizes eviction proceedings against a tenant who "has unreasonably refused the owner access to the housing accommodation for the purpose of making necessary repairs or improvements required by law or authorized by the DHCR, or for the purpose of inspection or showing the housing accommodation to a prospective purchaser, mortgagee or prospective mortgagee ..., provided, however, that in the latter event such refusal shall not be a ground for removal or eviction unless the tenant shall have been given at least five days' notice of the inspection or showing, to be arranged at the mutual convenience of the tenant and owner so as to enable the tenant to be present at the inspection or showing ..." (emphasis added).

In granting tenant summary dismissal of the petition, the motion court concluded as a matter of law that the tenant's professed inability to provide access on the August and September 2000 dates proposed by landlord was the "product" of the landlord's "unreasonable habit" of proposing access dates on short notice and "without first consulting with the [tenant] on whether such dates were convenient." The court thus engaged in unsupported issue determination rather than issue finding, and improperly engrafted into the governing Code section notice requirements which, though applicable to other types of inspections therein specified, find no relevance to the Code access provisions pertaining to "necessary repairs or improvements", the provisions here at issue. And while the existing record may support the court's finding that tenant offered a credible excuse for his absence from the premises during the series of February 2001 repair dates scheduled by DHCR, there remain issues as to the reasonableness of the tenant's failure to provide landlord with alternative means of access on those dates.

NOTE: In Anderson v. Bidlo, HC, AT1 & TN-HCD all forgot about the notice requirement in 28 RCNY § 25-101, as promulgated pursuant to HMC § 27-2008 which provides "(w)here an owner, contractor or agent of the owner seeks access to make improvements required by law or to make repairs, notice shall be given to the tenant not less than one week in advance of the time when the improvements or repairs are to be started." except for emergencies. Since RSC § 2524.3 does not define or even give guidance to the phrase '"unreasonably refused the owner access to the housing accommodation for the purpose of making necessary repairs or improvements required by law or authorized by the DHCR," and another rule, 28 RCNY § 25-101, does, legal construction requires that the courts to read those requirements as minimum notice required for the RSC § 2524.3 repair section.In other words: because NYC law requires landlords to provide one-week's notice for repairs, no landlord can evict a RC/RS tenant for failure to provide access unless landlord proves compliance with HMC § 27-2008 and 28 RCNY § 25-101. Further: if the lease provides even more stringent notice requirements, e.g. notice by personal deliver or certified mail, landlord must also prove compliance with the lease provision.

**************

In this next case, the Appellate Term ruled that landlord failed to establish that tenant unreasonably refused access to the premises because the 'repair' itself was not required by law.

Not Reported in N.Y.S.2d, 2002 WL 32075426 (N.Y.Sup.App.Term), 2002 N.Y. Slip Op. 50659(U)This opinion is uncorrected and will not be published in the printed Official Reports.

Idris PEROVIC, Appellant,v.Doina DIJAN, Respondent.

Supreme Court of the State of New YorkAppellate Term: 2nd and 11th Judicial Districts

Dec. 17, 2002.

Appeal by landlord from a final judgment of the Civil Court, Kings County (G.Wright, J.), entered on August 20, 2002, which dismissed the petition.

Present: ARONIN, J.P., GOLIA and RIOS, JJ.

OPINION OF THE COURT

Final judgment unanimously affirmed without costs.

In this holdover proceeding, landlord seeks to evict the tenant from the rent--controlled premises upon the ground that the tenant unreasonably refused access to said housing accommodation for the purpose of making a necessary improvement to the heating system as required by law (NY City Rent and Rehabilitation Law [Administrative Code of City of NY] § 26-408[6]). In our opinion, the court below properly found that the improvement which landlord sought to make was not shown to be necessary or required by law. There was no proof that the system was in use on July 14, 1967 or that the work was "approved by the appropriate city agencies with jurisdiction and [was] installed in a ... building erected, converted, substantially rehabilitated or completely vacated after July [14, 1967]" (Administrative Code of City of NY § 27-2028). Accordingly, we find that landlord failed to establish that tenant unreasonably refused access to the premises.

Landlord's remaining contention that the appeal was not timely is without merit (CPLR 5513[a]).

BY ZACH WILLIAMS | A bill recently passed by the City Council would require landlords to provide at least 24 hours notice before doing work that would disrupt building services, such as heat, water and electricity.

Mayor de Blasio is expected to sign the measure into law in the near future following a 50-to-0 vote by the Council on May 14 in favor of the legislation. The bill requires landlords to give 24 hours notice before most type of work, with a mandatory 10 days notice for major alteration work. The suspension of elevator service for more than two hours would also require a day’s notice, under the legislation.

Councilmember Rosie Mendez and Borough President Gale Brewer — the bill’s primary sponsors — said in a May 14 statement that proper notification would let tenants plan ahead of building construction, as well as figure out the intentions of their landlords in conducting work.

“Today, a wheelchair-bound tenant could leave for work in the morning and return in the evening to find the elevator offline for hours, having never heard a whisper about it,” Brewer said. “Tenants deserve fair warning and an opportunity to plan around disruptive maintenance work.”

Brewer also noted that predatory landlords often use renovation work to harass and force out rent-regulated tenants so they can increase rents. Affordable housing advocates say such practices are common in the East Village and on the Lower East Side.

Currently, tenant-protection laws do not require landlords to give such notice, creating a loophole that not only invites abuse but also dispenses with common courtesy, according to Mendez.

A Brewer spokesperson said that mayoral staff took part in navigating the bill through the Council legislative process. There have been no indications that de Blasio would not support the bill, a Mendez spokesperson said, though a date has not been set yet for when the mayor would sign the bill into law.

Services included under the legislation are any heat, hot water, cold water, gas or electricity service expected to be affected for more than two hours. Exceptions would be allowed for emergency work, with the understanding that notice subsequently be given to residents as soon as possible.

The city Department of Housing Preservation and Development would assume responsibility for enforcing the law, as well as determining applicable rules, like what form notice is given, such as English and Spanish, as well as other applicable languages. A department spokesperson did not respond to a request for comment.

“ ‘Construction as harassment’ is a huge problem in the East Village and Lower East Side,” said Brandon Kielbasa, director of organizing for the Cooper Square Committee. “New laws, like this one, that give tenants more rights for dealing with this issue are a step in the right direction.”

He added that, with the anticipated new law in place, tenants would be better able to argue in Housing Court that their landlords were conducting work without notification in order to harass them. Kielbasa said few of the landlords he has encountered in his work currently offer tenants notification.

The noise and vibrations from renovation work are one headache for rent-regulated tenants who suspect their landlords have nefarious motives. And then there is also the construction dust that often accompanies the conversion of apartments into luxury housing. Of equal concern is the lack of advance notice to prepare for interruption of water, heat and / or electrical service. As previously reported by The Villager, these predatory andlords, for their part, have defended their work by claiming they gave prior notice to their tenants for this type of work.

The Tenant Network(tm) for Residential Tenants Information from TenantNet is from experienced non-attorney tenant activists and is not considered legal advice.Subscribe to our Twitter Feed @TenantNet